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Federal panel asks state court to resolve public nudity case

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    NMU         SECOND CIRCUIT         Press at Home & Abroad         Mar 31, 2000    

Federal panel asks state court to resolve public nudity case

  • A New York City photographer who brought a federal civil suit against the city over an arrest threat if he took nude pictures will have to wait until the state’s highest court resolves the issue under state law.

The U.S. Court of Appeals in New York City (2nd Cir.) in late March asked the state’s highest court to determine if a photographer’s planned public shoot of dozens of nude models violated state law and if so, whether that state law violated the New York Constitution.

The three-judge federal panel could not agree on resolution of any of the issues in the case, but only on the decision to postpone resolution of the First Amendment issue until the New York Court of Appeals in Albany resolves the state question.

Judge Guido Calabresi, writing only for himself, questioned the reasoning behind the city’s efforts to stop photographer Spencer Tunick, from taking pictures of 75-100 nudes in New York City.

Calabresi noted the increasing volume of First Amendment cases amassed under Giuliani’s administration, likening the federal courts to local licensors for the city.

“We would be ostriches if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years,” he wrote. “In the current and rather remarkable state of affairs in New York City, there is an all-too-clear danger that the courts, instead of merely interpreting and defending federal rights, may cross the line and become, in effect, an agency that performs crucial local government functions.”

In a separate opinion, Judge Robert Sack agreed with Calabresi that the state court should address the state constitutional issue first, but only because he could not get another judge on the panel to agree that the court should not postpone action when a First Amendment right is allegedly being violated.

Sack also criticized the city for leaving the decision on how to handle public nudity to the police.

“Police censorship is, if anything, more dangerous than a licensing system,” he wrote. “I do not think that law enforcement officials may stop expressive activity before it begins absent a clear statute making the activity illegal. The police operate under no such clear mandate here.”

Tunick, a photographer of “living sculptures” whose work, the court noted, has appeared in numerous galleries and been reviewed in national magazines, has been arrested five times for photographing volunteer nudes in public without a permit.

Last year, Tunick applied for a permit to shoot numerous models on July 18, 1999, between 5:30 a.m. and 6:30 a.m. in a residential Manhattan neighborhood. The session was to involve predominantly clothed models including a five-minute shoot of nude models. He was granted the permit for the clothed models and denied the permit for the nude shoot. Tunick then sued the city for violating his rights under the First Amendment.

“They usually just ticket me. We defend our First Amendment rights. It gets thrown out of court. But now I don’t think Giuliani can tell the difference between pornography and nudity,” he said in an interview with

At the center of the dispute lies an exemption in the state’s anti-nudity law. N.Y. Penal Law 245.01 states that a person can be found guilty if their “private or intimate parts of their body are unclothed or exposed” or if they facilitate such an act. Yet, an exemption is provided for breastfeeding mothers or to “any person entertaining or performing in a play, exhibition, show or entertainment.”

“One need not contemplate why, on the city’s reasoning, a totally naked production of ‘Hamlet’ could be staged in the middle of Grand Central Station during rush hour, while Tunick’s photo shoot had to be banned regardless of time, place or manner in which it occurred, to say that statute as interpreted by the city would raise serious constitutional issues,” wrote Calabresi.

(Tunick v. Safir; Artist’s Counsel: Ronald Kuby, New York City)

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